r

is not charged with knowledge acquired by officer in regard to transaction as he will not be presumed to impart knowledge which is adverse to his own interest unless officer acts for both banks or is sole representative of bank with which he deals. - Ohio Valley Banking and Trust Co. v. Citizens' Nat, Bank, Ky., 191 S. W. 433.

15. Rescission.-Plaintiff, induced by fraudulent representations of president of bank to subscribe for its stock, giving note, held entitled to rescission of subscription contract, and to cancellation of note, in banking commissioner's action thereon on the bank's insolvency.Smith v. Jones, Ky.. 191 S. W. 500.

16. Bills and Notes-Accommodation Maker.-
Where, contrary to the agreement upon which
a neighbor, for accommodation, signed a note as
joint maker, that the accommodated maker
should discount it at a bank for cash, the ac-
commodated maker negotiated it after maturity
for corporate stock, the accommodation maker
was not liable to a transferee after maturity,
under Rev. St. 1909, $ 10028, as to holders in due
course. Schlamp v. Manewal, Mo., 190 S. W. 658.

17. Descriptio Personae.-Under Negotiable
Instruments Law (Rev. St. 1909, § 9991) as to
form of signature on notes, where notes given
for a piano purchased by a corporation were
signed by the corporation and by another per-
son with no official designation, the latter signer
was liable to the payee, although in fact secre-
tary of the corporation and intending to sign as
'such.-Rudolph Wurlitzer Co. v. Rossmann, Mo.,
190 S. W. 636.

18. Designatio Personae. - A corporation's president, by writing his mere name upon the back of the company's note, without the addition of any qualifying language, became an indorser, under Negotiable Instruments Law, § 113.-Меchanic v. Elgie Iron Works, N. Y., 163 N. Y. Supp. 97.

19. Notice of Dishonor. - Where a note was not negotiated before maturity, but remained in the hands of the original obligees, a maker and original obligor was not entitled to notice of dishonor or nonpayment thereof under Negotiable Instruments Law, Ky. St. § 3720b, subsecs. 102-104.-Sim v. Citizens' Bank of Carrsville, Ky., 191 S. W. 489.

20. Pleading and Practice. - Where defendant pleaded he executed a note as a stockholder of bank for amount of par value of his stock under agreement that, should bank recover losses sustained, the recovery should be applied to notes given by several stockholders, only issues raised were existence of agreement and amount of credit. Thompson v. Citizens' Bank, Ga., 91 S. E. 84.

21. Carriers of Goods Connecting Carrier.Act Cong. June 29, 1906 (Carmack Amendment to Hepburn Act), does not prohibit a common-law action against a connecting carrier for injury to interstate shipment caused by negligence of connecting carrier. Cincinnati, H. & D. Ry. Co. v. Quincy & Rogers, Ga., 91 S. E. 220.

22.-Initial Shipment.- Where shipment of ore subject to Interstate Commerce Act was unloaded at sampling works siding, sampled,

reloaded, and sealed, there was an initial ship-
ment from siding, so that under uniform bill of
lading carrier was not liable where metallics
were stolen from car before attached to train.-
Siebert v. Erie R. R., N. Y., 163 N. Y. Supp. 111.

23. Intermediate Carrier. - Under Carmack
Amendment to Interstate Commerce Act, shipper
over connecting lines still has remedy against
intermediate carrier for loss occuring on its line
only. Southern Ry. Co. v. Avey, Ky., 191 S. W.
460.

24. Lien. - Where a person furnishes and delivers materials and includes cartage expenses in the price of the materials, his statutory lien upon the completed structure may include cartage expenses as well as the price of the materials. Siler Mill Co. v. Charles Nelson Co., Wash., 162 Pac. 590.

25.Lien.-Where contract of interstate shipment is invalid because made at rate other than that prescribed by published schedule rates, carrier under Rev. Laws 1910, §§ 847, 3845, 3852, has a lien for charges. - St. Louis, I. M. & S. Ry. Co. v. McNabb, Okla., 162 Pac. 811.

26. Switching Arrangements. - Under provision of uniform bill of lading that property received from private or other sidings should be at owner's risk until cars were attached to trains, track on carrier's right of way parallel to its main track and connected therewith by two switches was a siding, and within the term "other sidings." - Bers v. Erie R. Co., N. Y., 163 N. Y. Supp. 114.

27. Commerce-Congressional Inaction. -Congressional inaction leaves a state free to impose such burden on interstate commerce as may result from Gen. Code Ohio, §§ 6373-1 to 637324, forbidding sale of corporate stock within state without state license.-Hall v. GeigerJones Co., U. S. S. C., 37 Sup. Ct. 217.

28. Employe. Under federal Employers' Liability Act, an employe may have duties involving both interstate and intrastate commerce, and where plaintiff, regularly employed in replacing old rails, was, when accident occurred, loading old rails lying on right of way, he was not then engaged in interstate commerce. Cincinnati, N. O. & T. P. Ry. Co. v. Hansford, Ky., 190 S. W. 690.

29. Employers' Liability Act.-The common-law liability of a railroad company, when engaged in intrastate commerce continues despite the federal Employers' Liability Act, and the right to recover from it when so engaged is based on the common law. Hogarty v. Philadelphia & R. Ry. Co., Pa., 99 Atl. 741.

30. Installation. Contract by foreign corporation which has not complied with the laws (Gen. St. 1913, §§ 6206, 6207) for sale to resident of machine coupled with agreement to install same is not protected as interstate commerce, agreement for installation not being essential part of sale; hence contract is unenforceable.Palm Vacuum Cleaner Co. v. Bjornstad, Minn., 161 N. W. 215.

31. Compromise and Settlement - Equity. Although Rev. St, 1909, § 1812, providing that when a release is pleaded in bar, the reply may allege fraud, etc., changed the rule that a re

51. Homestead-Liens. - Where debt against homestead was secured by lien and assignment of judgment against third person, the lienholder, as against set-off in favor of judgment debtors accruing subsequent to assignment, was required by law to apply judgment to payment of debt at debtor's request before selling homestead under the lien.-Pease v. Randle, Tex., 191 S. W. 566.

52. Town Lots. - Where a man and wife reside in a building upon two ordinary town lots owned by them for several years, and have no other home, such building, though they conduct a hotel therein, will be deemed their homestead. -Foltz v. Maxwell, Neb., 161 N. W. 254.

53. Insurance-Accident. Under accident insurance policy covering "the effects of bodily injuries sustained directly, solely, and exclusively through accidental means," it was necessary to show that in act preceding injury'causing death there was something unforseen, unexpected and unusual. Fulton v. Metropolitan Casualty Ins. Co. of New York, Ga., 91 S. E. 228.

54. Burden of Proof. - Where under accident policy suit is brought for entire and irrecoverable loss of an eye, plaintiff must show that the loss is both entire and irrecoverable. - Wilkins v. Georgia Casualty Co., Ga., 91 S. E. 224.

55. Estoppel. - Where a mutual assessment company sets out in certificate synopsis of bylaws, leading insured to believe that it contains all provisions applicable, insured may rely on such synopsis, and company is estopped to deny liability under a by-law which insured was led to overlook or believe had no application.-Bierbach v. Mutual Benefit Health & Accident Ass'n, Neb., 161 N. W. 251.

56. Evidence. An admission by an applicant for an accident policy that he was a farm foreman would necessarily be limited to the time when it was made, and was not an admission that this was his occupation when he was subsequently injured by accident.-Provident Life & Accident Ins. Co. of Chattanooga, Tenn., v. Black, Ala., 73 So. 757.

57. Fraternal Association. - Where member of fraternal insurer appears at trial before committee and is expelled, judgment being one which committee has authority to make, such member must pursue the appeal given to supreme body of order and cannot appeal to courts. -National Council of Knights & Ladies of Security v. Turovh, Minn., 161 N. W. 225.

58. Place of Contract. - Where insurance policy was issued by Missouri corporation and signed by its officials in Missouri, but insured and beneficiary were residents of Illinois, and policy was delivered there, it was an Illinois contract.-Lukens v. International Life Ins. Co., Mo., 191 S. W. 418.

59. Stipulations. - Where insured merely ordered insurance on certain property which the agent said he would write and leave for him with a bank, the policy held not avoided by its stipulation that it should be avoided by existing insurance, where insured had not taken policy from bank when loss occurred, Ky. St., § 639, not applying. Springfield Fire & Marine Ins. Co. v. Snowden, Ky., 191 S. W. 439.

60. Total Disability. The meaning of the phrase "total disability" in an accident policy is relative, depending on the particular circumstances, and is a question of fact for the court or jury trying the case. American Liability Co. v. Bowman, Ind., 114 N. Ε. 992.

61.-Waiver.-A written application by an employe for an employe's fidelity bond, which expressly stipulated that he would reimburse surety company for loss sustained by it on account of bond, did not constitute waiver on part of company of provision in bond that it would be invalid unless signed by employe.-National Surety Co. v. Rieves, Miss., 73 So. 732.

62. Intoxicating Liquors-Evidence. - Act No. 202 of 1914, and Act No. 23 of Ex. Sess., 1915, relating to the keeping and admission in evidence of records showing shipments of intoxicating liquors into dry territory, ex vi termini, have no application to shipments into wet territory. State v. Maddox, La., 73 So. 783.

C.

66. Licenses-Privilege Tax. - Laws 1914, 112, § 1, imposing a privilege tax to state of $2,000 per annum upon money loaning business' where a greater rate of interest than 20 per cent per annum is charged, held not unconstitutional because imposed only on such businesses. State v. Rombach, Miss., 73 So. 731.

67. Limitation of Actions-Federal Employers' Liability Act.-After expiration of the twoyear limitation prescribed by the act, a railroad employe, whose statement of claim set forth a common-law action, cannot amend the same so as to bring it within federal Employers' Liability Act.-Hogarty v. Philadelphia & R. Ry. Co., Pa., 99 Atl. 741.

68. Starting Point. The two-year statute of limitations does not begin to run against a railroad corporation which had resumed possession of its property after receivership for acts of the receivers until the resumption of possession. Kansas City, M. & O. Ry. Co. of Texas v. Weaver, Tex., 191 S. W. 591.

69. Master and Servant-Assumption of Risk. -Under federal Employers' Liability Act, railroad brakeman killed between two cars when engineer failed to obey his stop signal held not. to have assumed risk in placing himself before standing car; the engineer's act being that of the master. Gulf, C. & S. F. Ry. Co. v. Cooper, Tex., 191 S. W. 579.

70. Casual Employment.-One employed as foreman over other carpenters in the erection of a building, involving several months of regular labor, is not "casually" employed within the Workmen's Compensation Act. --Miller & Lux v. Industrial Acc. Commission of California, Cal., 162 Pac. 651.

71.-Farm Labor.-A carpenter constructing a cottage for a large corporation on one of its ranch properties does not come within the express exclusion of Workmen's Compensation Act, § 14, as one engaged in "farm labor."Miller & Lux v. Industrial Acc. Commission of California, Cal., 162 Pac. 651.

72. Jurisdiction. Under Rev. Code 1915, §§ 6604-1, 6604-2, 6604-27, stevedore injured while in the hold of a ship unloading it in navigable waters of Puget Sound was not within the act, and that his rights and remedies remained unimpaired. - Shaughnessy v. Northland S. S. Co., Wash., 162 Pac. 546.

73. Negligence. A mechanic, who participated in efforts to extinguish a fire in a mine, held entitled to have the company use ordinary care, so as not to increase his injury; so it was negligence to start a fan without warning, disseminating smoke, and resulting in his injury.Western Coal & Mining Co. v. McCallum, U. S. C. C. A., 237 Fed. 1003.

74. Res Ipsa Loquitur.-Railroad conductor injured in rear end collision when his train was pulling onto siding to make way for another train, made out a prima facie case when he proved rule requiring trains not to exceed six miles per hour on an obstructed track, and that the train which collided with his was going at a greater rate of speed, while he was conforming to the rule. Louisville & N. R. Co. v. Mitchell, Ky., 191 S. W. 465.

75. Municipal Corporations-Breach of Contract.-Where corporation breached its contract for reduction of garbage by refusing to receive further garbage, subsequent offers in writing to perform contract were ineffective to nullify

i

Central Law Journal.

ST. LOUIS, MO., APRIL, 20, 1917.

RESPONSIBILITY OF NON-RESIDENT BANK
DIRECTOR TO STOCKHOLDERS FOR
LOSSES BY PRESIDENT'S USE OF
BANK FUNDS.

The case of Wallach v. Billings, 115 N. E. 382, decided by Supreme Court of Illinois, holds that a long continued course of misconduct by the president of a bank in diverting its funds to his private enterprises, whereby losses ensued to the bank, gave no cause of action in favor of stockholders of the bank against a nonresident director.

The facts show that the defendant Billings had been continuously a director for several years; that during that period he had not attended any meetings of the board or passed upon local loans; that his being a director in another city was desirable for his general financial aid to the bank and that the transactions with the bank were correctly entered on its books. Thus it was that a casual examination would have revealed what was being done in the way of letting the president use bank funds.

There are some observations in the opinion to the effect that it "would be manifestly unjust under the facts to hold this non-resident director to the same degree of attention to the bank's affairs as the resident directors, whose duty it was to supervise the local loans and the management of the bank and who by their active connivance enabled Walsh to make the unlawful loans he did."

We greatly doubt whether stockholders competently could make any agreement for any director to neglect his duties as trustee. It would seem to be contrary to public policy for any agreement of this kind to be recognized. It involves a maze in fraud that is inconsistent with

the character of title there is in stock ownership. This title greatly resembles that of ownership in a negotiable instrument. It passes from hand to hand with about the same facility as such paper, and with every change of ownership there is an implied warranty against fraud in the management of the corporation.

Furthermore, if the principle of estoppel could apply in such a case at all, its application might be confined to particular stockholders and not generally. Thus every stockholder has a general right to examine the books of a bank, but it is not necessarily his duty to make such examination. His right is in his own interest and he may waive it.

But if some stockholders are bound because they have expressly agreed that a director shall not perform his obligation under oath or because they know he is a non-resident and could not be expected to perform it, a court is put to it to unravel a tangled web in distinguishing between stockholders, when all of them equally may transfer their stock to innocent purchasers.

This director appears to have taken an oath annually for several years that: "He will, so far as the duties devolve upon him, diligently and honestly administer the affairs of such association," and the court in distinguishing him from resident directors holds there was an understanding that he should not be bound as other directors are. The court said further that: "It must be remembered that this is not a suit by depositors or creditors of the bank but by the stockholders-members of the corporation themselves. It is charged in the bill that Billings by the exercise of reasonable diligence could have ascertained the condition of affairs. Is not the same thing true of every one of the stock holders? For a period of seven or eight years the president of the bank was making illegal and hazardous loans. The facts charged in the bill as sufficient to have put Billings on in